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Under Australian law a person who is 18 years of age is assumed to have capacity. This means that they can make all their own decisions. Australia has signed the Convention on the Rights of Person with Disabilities which states in Article 12 that people with a disability are presumed to have capacity to make decisions that affect their lives.
A person with capacity is able to make decisions affecting their daily life, such as:
A person with capacity also has the power to make decisions about matters that have legal consequences, including:
Generally, a person who has capacity to make decisions can:
It is very rare for a person not to have capacity for any decisions. However, this can happen when a person is, for example, unconscious or has a severe cognitive disability.
If a person lacks capacity then this often relates to the making of more complex decisions. Some examples of why capacity is decision specific include the following scenarios:
Capacity varies from person to person and from situation to situation. Capacity is not something solid that you can hold and measure, as it is affected by a person’s abilities and by what is happening around them.
Capacity may also be influenced by a person’s cultural background and experience. Indigenous Australians living in a remote community may not be able to complete a Centrelink form but have in-depth knowledge of their practices, families and communities which must be respected.
Everyone’s abilities vary and everyone reacts in their own way to their environment. For example, some people enjoy being in noisy places or busy places such as shopping centres, but others find this very stressful.
Each person’s capacity can fluctuate, depending on things such as their mental and physical health, personal strengths, the quality of services they are receiving, and the type of support needed.
The level of capacity a person has at a particular time can depend on the following factors:
This article is one of a series extracted from the Discover Guide, a 122 page comprehensive guide to the NDIS prepared by La Trobe University in conjunction with Endeavour Foundation and funded by the National Disability Insurance Agency. The guide aims to help people understand the various parts of the NDIS and how to access them. It also includes additional legal information - such as wills, guardianship, trusts and estate planning - for people with a disability and their families. Access your copy here.Casey, G., Keyzer, P., & O’Donovan, D. (2016) Discover (2nded.). Melbourne: La Trobe University.
A pre-planning booklet to help you to think about the supports you want and need – now and in the future – before meeting with your NDIA planner.
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A handy guide of NDIS FAQs and a glossary so you can familiarise yourself with NDIS language before your planning meeting.